256 U.S.

417
41 S.Ct. 508
65 L.Ed. 1027

In re MATTHEW ADDY STEAMSHIP & COMMERCE

CORPORATION.
No. 30, Original.
Argued April 11, 1921.
Decided May 16, 1921.

Mr. T. K. Schmuck, of New York City, for petitioner.

Messrs. Edward R. Baird, Jr., and Gilbert R. Swink, both of Norfolk, Va.,
for respondent.
Mr. Justice CLARKE delivered the opinion of the Court.

The Coalmont Moshannon Coal Company, a Pennsylvania corporation, filed its

petition in the circuit court of the city of Norfolk, Va., against the petitioner,
Matthew Addy Steamship & Commerce Corporation, a Delaware company, for
the recovery of damages for the alleged breach of a contract, and, under
Virginia practice, garnisheed other defendants. In due time, and in proper form,
the defendant, the petitioner herein, filed its petition for the removal of the case
to the District Court of the United States for the Eastern District of Virginia.
Thereafter the plaintiff in the state court filed a motion to remand the case
claiming that it was not removable for the reason that the plaintiff and the
principal defendant were nonresidents of the Eastern District of Virginia. The
District Court sustained this motion and ordered the case remanded to the state
court.

The petition in this proceeding prays that a writ of mandamus shall be issued,
directing the District Judge for the Eastern District of Virginia, to vacate the
order remanding the case, to redocket it in the District Court, and that it
thereupon be heard and determined according to law. A rule to show cause was
issued and the judge has filed his return, in which he asserts that the petition
should be dismissed, for the reason that mandamus is not an appropriate
remedy, because not permitted by the provisions of section 28 of the Judicial

Code (Comp St. 1010), reading as follows:

3

'Sec. 28. * * * Whenever any case shall be removed from any state court into
any District Court of the United States, and the District Court shall decide that
the case was improperly removed, and order the same to be remanded to the
state court from whence it came, such remand shall be immediately carried into
execution, and no appeal or writ of error from the decision of the District Court
so remanding such cause shall be allowed.'

This language of the Judicial Code first appeared in the Act of Congress of
March 3, 1887 (24 Stat. 552, c. 373), as re-enacted on August 3, 1888 (25 Stat.
433, c. 866), and it has continued unchanged, except by the substitution of the
District for the Circuit Court.

In 1890, in the case of In re Pennsylvania Co., Petitioner, 137 U. S. 451, 11

Sup. Ct. 141, 34 L. Ed. 738, it was held that the power which this court had
before the passage of the acts, supra, to afford a remedy by mandamus when a
cause, removed from a state court was improperly remanded thereto, was taken
away by these acts. Upon full consideration of the prior legislation, this court in
the opinion in that case said of the language of the statute quoted (137 U. S.
454, 11 Sup. Ct. 142 [34 L. Ed. 738]):

'In terms, it only abolishes appeals and writs of error, it is true, and does not
mention writs of mandamus; and it is unquestionably a general rule, that the
abrogation of one remedy does not affect another. But in this case, we think it
was the intention of Congress to make the judgment of the Circuit Court
remanding a cause to the state court final and conclusive. The general object of
the act is to contract the jurisdiction of the federal courts. The abrogation of the
writ of error and appeal would have had little effect in putting an end to the
question of removal, if the writ of mandamus could still have been sued out in
this court. It is true that the general supervisory power of this court over
inferior jurisdictions is of great moment in a public point of view, and should
not, upon light grounds, be deemed to be taken away in any case. Still, although
the writ of mandamus is not mentioned in the section, yet the use of the words
'such remand shall be immediately carried into execution,' in addition to the
prohibition of appeal and writ of error, is strongly indicative of an entent to
suppress further prolongation of the controversy by whatever process. We are,
therefore, of opinion that the act has the effect of taking away the remedy by
mandamus as well as that of appeal and writ of error.'

In Fisk v. Henarie, 142 U. S. 459, 468, 12 Sup. Ct. 207, 35 L. Ed. 1080, In re

Pennsylvania Company, supra, was cited as authority for the declaration that
'review on writ of error, or appeal or by mandamus is taken away' by the
statutes cited.
8

In Missouri Pacific Railway Company v. Fitzgerald, 160 U. S. 556, 581, 16

Sup. Ct. 389, 395 (40 L. Ed. 536) this court said:

'It was subsequently decided in the case of In re pennsylvania Company, 137 U.

S. 451, 454, that the power to afford a remedy by mandamus when a cause,
removed from a state court, is improperly remanded, was taken away by the
Acts of March 3, 1887, and August 13, 1888.'

10

In Powers v. Chesapeake & Ohio R. Co., 169 U. S. 92, 98, 18 Sup. Ct. 264, 266
(42 L. Ed. 673) it was said that an order remanding a case such as we have here
'is not reviewable by this court.' In McLaughlin Brothers v. Hallowell, 228 U.
S. 278, 33 Sup. Ct. 465, 57 L. Ed. 835, it is held that an order of the United
States Circuit Court, remanding a case to a state court, in not reviewable here,
directly or indirectly, citing Missouri Pacific Railway Co. v. Fitzgerald, 160 U.
S. 556, 16 Sup. Ct. 389, 40 L. Ed. 536.

11

It is obvious that this statute, and these decisions interpreting it, rule the case at
bar, and require that the petition for mandamus be dismissed.

12

It is not important to inquire to what extent, if at all, Ex parte Wisner, 203 U. S.

449, 27 Sup. Ct. 150, 51 L. Ed. 264, and In re Moore, 209 U. S. 490, 28 Sup.
Ct. 585, 706, 52 L. Ed. 904, 14 Ann. Cas. 1164, departed from the statute and
decisions cited, for the correct rule with respect to the function and use of the
writ of mandamus has been so often announced in other later cases that it has
become entirely settled. Ex parte Harding, 219 U. S. 363, 31 Sup. Ct. 324, 55
L. Ed. 252, 37 L. R. A. (N. S.) 392; McLaughlin Brothers v. Hallowell, 228 U.
S. 278, 33 Sup. Ct. 465, 57 L. Ed. 835; Ex parte Roe, 234 U. S. 70, 34 Sup. Ct.
722, 58 L. Ed. 1217; Pacific Live Stock Co. v. Lewis, 241 U. S. 440, 447, 36
Sup. Ct. 637, 60 L. Ed. 1084; Ex parte Park Square Automobile Station, 224 U.
S. 412, 37 Sup. Ct. 732, 61 L. Ed. 1231; Ex parte Park & Tilford, 245 U. S. 82,
38 Sup. Ct. 15, 62 L. Ed. 164.

13

The conflict of opinion in the lower courts with respect to the right of removal
from a state court of a case in which the opposing parties are citizens of
different states and neither is a resident of the state in which the case is
commenced, is much to be regretted, but section 28 of the Judicial Code is
controlling, and Congress alone has power to afford relief.

14

Rule discharged.

15

Petition dismissed.